“In crisis” can both mean during crisis or in a state of crisis. This Article is about voting rights lawyering in reference to both of those meanings: voting rights lawyering during the Covid-19 pandemic reveals voting rights lawyering in trouble. Even before the pandemic, legal commentators and experts have sounded the alarm about dwindling legal protections for voting rights in the United States. Suppressive voting laws have been repeatedly upheld; structural reform litigation of election administration has become virtually nonexistent. That even lawsuits brought to make the vote accessible during a historic pandemic were met with much resistance and little success only highlights how much trouble voting rights litigation is in. The traditional notion of voting—waiting in line to cast a ballot in person on Election Day—could not be maintained for a pandemic election. Doing so would not only force voters to make an unreasonable risk calculus about whether to vote, but would also pose a public health risk of increasing community transmission. And yet, for every jurisdiction that made some necessary adjustments to the preexisting electoral regime in light of the pandemic, there seemed to be another that failed to do so. Voting rights groups brought cases seeking necessary but modest accommodations; for instance, to ensure that vulnerable individuals had access to curbside voting opportunities or to clarify requirements for expanded absentee voting. That these cases largely resolved in favor of jurisdictions that, in spite of the pandemic, refused to make necessary changes to their election administration only goes to show how hard it is to challenge election laws. Current election law doctrines do little more than rubber stamp state electoral regimes, even when state election laws are not supported by valid justification or even impede voters’ ability to exercise the franchise.
The author wishes to thank the editors of CUNY Law Review, who encouraged her to contribute to this issue, especially Rachel Kreutzer and her team for their gracious suggestions and careful edits.
Emily Rong Zhang, Voting Rights Lawyering in Crisis, 24 CUNY L. Rev. 123 (2021).